The People of the State of New York, Respondent, v. Charles J. Everhardt, Appellant

The People of the State of New York, Respondent, v. Charles J. Everhardt, Appellant. The provision of the Code of Criminal Procedure (§ 399), requiring corroboration of the testimony of an accomplice is complied with, if there is some other evidence fairly tending to connect the defendant with the commission of the crime charged, so that the conviction will not rest entirely upon the evidence of the accomplice. The question as to whether the evidence is sufficient corroboration is for the determination of a jury. Upon the trial of an indictment for forgery; the charge being that defendant knowingly uttered a forged check. Held, that on the question of guilty knowledge it was competent to prove the uttering by him of other forged checks upon other occasions. The defendant was described in the indictment by various names. Upon the trial defendant’s counsel gave his true name, and requested that in administering oaths on the trial, the clerk should designate him by this name omitting the fictitious names. The court replied that it would instruct the clerk to designate defendant by the name so given, and would allow him to state the other names contained in the indictment, and in administering oaths, the clerk gave all the names, to which said counsel excepted. It appeared from the examination of some of the jurors, that they were prejudiced by the fact that he seemed to have so many different names; these were excluded from the jury. Held, that while the fictitious names might have been omitted after the true name was discovered, no material error was committed by the repetition of them. After the rendition of a verdict of guilty, at the request of defendant’s counsel, the defendant was remanded until a day named for the purpose of a motion for arrest of judgment and for a new trial; no motion was made by either party on the day named or during the term. attorney mpved for judgment, which was opposed on the ground that the court had no jurisdiction. Held, untenable; that it was fairly to be assumed that defendant, by .not appearing, or offering to appear, on the day named, and by not objecting, waived the delay within the meaning of and as authorized by the provision of the Code of Criminal Procedure (§ 472), in reference to the time of pronouncing judgment after a verdict of guilty. (Argued February 10, 1887 ; decided March 1, 1887.) Appeal from, judgment of the General Term of the Supreme Oourt, in the first judicial department, entered upon an order made. January 4, 1887, which affirmed a judgment of the Oourt of General Sessions, in and for the city and county of Hew York, entered upon a verdict convicting defendant of the crime of forgery in the second degree. The material facts are stated in the opinion. A. Suydam for appellant. The corroboration of the accomplice was wholly insufficient. The additional evidence did not “ tend to connect the defendant with the commision of the crime.” (Code of Crim. Pro., 399; People v. Courtney, 28 Hun, 589; People v. Plath, 100 N. Y. 593.) All the evidence in regard to the uttering of other forged checks was improperly admitted. (Stokes v. People, 53 N. Y. 164, 170; Rosenzweig v. People, 6 Lans. 462; Coleman v. People, 55 N. Y. 81, 90, 91; Copperman v. People, 56 id. 592; People v. Gibbs, 93 id. 470, 473; People v. Baker, 96 id. 340.) It is contended, on behalf of the appellant, that, according to common law rules, and by the clear interpretation of the provisions of the Code of Criminal Procedure, judgment in a criminal action must be rendered at the same term at which the action was tried, unless there is a reason for delay arising out of some proceeding between verdict and judgment, and that such reason must appear on the record. (Code of Crim. Pro., §§ 471, 472, 483; Rex v. Fletcher, Russ & Ry. 58; Brown v. Rice, 57 Me. 55; Com’rs v. Malay, 57 Penn. St. 291; Fx parte Lange, 18 Wall. 163, 174; Lowenberg v. People, 27 N. Y. 336.) The repetition of the alias names in the hearing of the jury against the objection of the defendant was • error and affected his substantial rights. (Hildreth v. City of Troy, 101 N. Y. 234, Code of Civ. Pro., § 387.) McKenzie Serryple for respondent. If a defendant is indicted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered it may be inserted in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment. (Code Crim. Pro., § 277; Thompson & Merriam on Juries, 228, 229, § 259; Grisson v. State, 8 Tex. App., 370, 378; Atlas Co. v. Johnson, 23 Mich. 37.) The exclusion by the court of a talesman is not reviewable- on appeal. (Crim. Code, §§ 445, 485, 527.) The evidence relied on, as corroborative of the accomplice and tending to prove defendant's complicity in the perpetration of the crime, was sufficient. (People v Ryland, 97 N. Y. 126; 28 Hun, 589; 1 N. Y. Cr. R. 123.) Special intention to defraud was one of the constituent elements of the crime charged and was, therefore, as doubtful (in the sense that it was in issue) as any of the other constituent elements of the crime, proof of other previous forgeries was admissible. (People v. Whyland, 4 Hun, 511; People v. Shulman, 80 N. Y. 373; Mayer v. People, id. 364.) Even if the delay cannot be deemed to have been waived by the defendant, and if the rendering of judgments after the expiration of the term at which the defendant was tried and convicted can be deemed a departure from the mode of procedure prescribed by the Code, or an error or mistake therein, it is not such a departure, error or mistake as renders the judgment invalid or furnishes ground for reversal, for it did not actually prejudice the defendant, or tend to his prejudice, in respect to a substantial right. (Code of Crim. Pro., § 684.) Such error or mistake was not available on motion m arrest of judgment, which motion must be founded upon some one of the “ defects in the indictment in section 331.” (Code Crim. Pro., § 467.) [MAJORITY — Earl, J.] Earl, J. The défendant was convicted in the Court of General Sessions in the city of Hew York of the crime of forgery in the second degree, committed by uttering a forged check knowing it to be forged.. : Prior to his conviction, one1 Gaylord had been convicted óf the same offense for uttering the same check, and had been sentenced to the State prison at Sing Sing. He was produced as a witness on the trial of the defendant and testified that lie received the forged check from him and was induced by him to .attempt to obtain the money upon it from the bank upon which :it was drawn. He was therefore an accomplice, and the •objection is- now inade that his testimony was not sufficiently •corroborated under section 399 of the Code of Criminal Procedure, which provides that u a conviction cannot be had upon the testimony of an accomplice unless he be corroborated •by such other evidence as tends to connect the defendant with the commission of the crime.” Prior to the enactment of this ■section it was customary forjudges to instruct jurors that they .should not convict a defendant of crime upon the evidence of .an accomplice unless such evidence was corroborated; and yet it was the law in this State that a defendant could be convictdd upon the uncorroborated evidence of an accomplice if the jury believed it. This section has changed that rule of law and requires that there should be simply corroborative evidence, which tends to connect the defendant with the commission of the crime. Here, without referring particularly to the evidence of Schulken and of Caroline- Gaylord, we think such evidence was sufficient to show some active agency on the part of the defendant in uttering the check, and thus to connect him with •the commission of the crime, and that satisfies the law. Whether that evidence was sufficient corroboration of the .accomplice was for. the determination of the jury. The law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime so ■.that his conviction will not rest entirely upon the evidence of •.the accomplice. "Upon the trial, the people were allowed to prove against the objection of the defendant, the uttering of • other forged checks by him upon other occasions. In this there was no error. The defendant by his plea of not guilty had put in issue everything which it was incumbent upon the people to prove. They had no direct or positive evidence that he personally forgéd the check which he uttered, and it was open for him to show that at the time he uttered it he had no knowledge that it was forged, and was therefore innocent of crime; and for the purpose of showing the prisoner’s guilty knowledge in such cases it has. always been held competent to prove other forgeries. (Mayer v. People, 80 N. Y. 364; People v. Shulman, id 373.) Such proof is not received for the purpose of showing other crimes than that charged in the indictment, but for the purpose of showing the guilty knowledge and intent which are element’s of the crime charged, and it can be considered by the jury only for that purpose. Although the evidence of Gaylord, corroborated as it was, as to the guilty knowledge of the defendant, was quite clear and convincing, yet the people were not bound to rest upon a prima facie case, but had the right to confirm that evidence by the proof as to the uttering of other forged checks. The defendant was described in the indictment as “ George Hartman, otherwise called George Peters, otherwise called Mash Market Jake, otherwise called Charles Coke; otherwise called Charles McGloin.” Upon the trial, these names .were repeated by the clerk in the oath administered to the jurors challenged, and the counsel for the defendant objected to the repetition of such names on the ground that it tended "to prejudice the defendant in the minds of the jurors; and he admitted and offered to prove that the true name of the defendant was Charles Everhardt. The trial judge stated in reply that he could see no objection to the clerk inserting in the subsequent proceedings the name which the defendant asserted was his true name, and referring to the fact that he was indicted under another name. The defendant’s counsel excepted and again asked the court to instruct the clerk, in swearing the jurors and the witnesses, that he should designate the defendant as Charles J. Everhardt, and omit the fictitious names. The court replied that he would instruct the clerk to designate the defendant as Charles J. Everhardt, and would allow him to state the several other names. To this ruling the defendant’s counsel excepted. Thereafter, throughout the trial, at each administration of an oath the clerk, under the instructions of the court, designated the defendant as “ Charles J. Everhardt, indicted as George Hartman, otherwise called George Peters, otherwise called Mash Market Jake, otherwise called Charles Coke, otherwise called Charles McGloyn.” At each repetition of these names defendant’s counsel objected thereto and moved that the defendant be designated by the name of Charles J. Everhardt, and not by the fictitious names. The objections #ere overruled and the motion denied and defendant’s counsel excepted. It appeared from the examination of some of the jurors that they were prejudiced by the fact that the defendant appeared to have so many different names, and they were excluded from the jury on that account, and twelve jurors were finally empaneled against whom there was no objection. Section 277 of the Code of Criminal Procedure provides that “if the defendant is indicted by a fictitious or erroneous name and in any stage of the proceeding his true name is discovered, it may be included in the subsequent proceedings referring to the fact of his being indicted by the name mentioned in the indictment.” Ho material error was committed by the repetition of the fictitious names. While undoubtedly they might with propriety have been omitted in the administration of the oath to jurors and witnesses after the true name was discovered and inserted in the indictment and other proceedings, yet as such names all appeared in the indictment and in the evidence it was not error to repeat them whenever it became necessary to name the defendant, and it cannot be assumed that any legal harm was thereby done to him. After the jury returned their verdict of guilty, the ceunsel for the defendant requested that the defendant be remanded until the Tuesday following, which was the twenty-second day of December, that he might then make a motion for arrest of judgment, and for a new trial, and the court granted the request and ordered that the prisoner should be remanded until that day. The record then states that no further proceedings were had and no motion was made by either party during the December Term of the court; that afterward, on the 24th day of December, 1885, the December Term of the court was finally adjourned without day; that afterward, on the 7th day of January, 1886, at the January Term of the court, the same judge presiding, the following proceedings were had : The defendant being again led to the bar of the court, the district attorney moved for judgment, and the defendant being asked if he had any cause to say why judgment should not be pronounced against him, his counsel moved for. a new trial upon various grounds mentioned, being for errors committed during the progress of the trial. He also moved that judgment should be arrested because, among other things, “ the verdict was rendered and the jury dis • charged on the 18th day of December, 1885, and during the December Term of the court; and afterward, to wit, on the 24th day of December, 1885, the court was duly adjourned until the next term, by which adjournment the December Term was finally adjourned without day, no judgment having been rendered, and the defendant not having applied for or consented to any delay in the rendition of judgment beyond the 22d day of December, 1885, being the Tuesday following next after the day on which the verdict was rendered, and the court now holding the January Term, 1886, has no jurisdiction to render judgment in the action.” The court which pronounced the judgment was the same court which tried the indictment, and in which the verdict was rendered, and it would be a sufficient answer in this case that no substantial harm was done to the defendant by the delay from the twenty-second day of December, to the seventh day of January following. But upon this record, it may fairly be said that the defendant,- not objecting, waived any delay within the meaning of section 472 of the Code of Criminal Procedure, which provides that the time for pronouncing judgment after a verdict of guilty “must be at least two days after the verdict, if the court intend to remain in session so long, or if not, as remote a time as can reasonably be allowed; but any delay may be waived by the defendant.” Judgment in this case was postponed at the request of the defendant until the twenty-second day of December, to enable his counsel to make a motion for arrest of judgment and for a new trial. On that day he did not appear or request to appear in court to make his motion, and hence he must be assumed to have been wholly indifferent to the' delay and to have consented thereto. There is, therefore, no reason for saying that the court lost jurisdiction to pronounce judgment on a subsequent day. We have now noticed briefly all the allegations of error brought to our attention by the counsel for the defendant, and believe that none of them are well founded The judgment should be affirmed. All concur. Judgment affirmed.